December 2015 • Volume 103 • Number 12 • Page 12
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Looking at how courts use attorneys for children in custody cases
The way courts use appointed GALs and child reps varies dramatically across the state. A committee of the ISBA Family Law Section Council hopes to bring more uniformity to the system.
Child custody cases often involve the use of a guardian ad litem (GAL), a child representative, an attorney for the child, or some combination of the three. However, the way these important participants are used varies dramatically from circuit court to circuit court.
The ISBA's Family Law Section Council's Committee on Representing Children wants to start a statewide dialogue on how attorneys are used to represent children. Marilyn Longwell and Treva O'Neill describe this effort in the September 2015 ISBA Family Law newsletter ("We need a statewide dialogue on the use of attorneys appointed to represent children," at http://bit.ly/1MKN7Pl).
Longwell and O'Neill recognize that economic and other factors may prevent creating a uniform system across the circuits. The committee hopes to "form a consensus as to what are the best practices in using attorneys to represent children" and to "accommodate for economic and other factors which impinge on those practices."
Taking a statewide approach will "enhance our ability to improve practices and train new attorneys in this important field," says O'Neill, a retired family law attorney from Anna. Longwell, principal of Chicago-based Marilyn Longwell & Associates, P.C., notes that practices across the state "are quite different, sometimes not consistent with the statute and the rules."
Longwell and O'Neill agree one challenge is that levels of economic and human resources vary across the state. While some counties have a large pool of professionals from which to draw, others, particularly in southern Illinois, have few if any child psychologists and psychiatrists to appoint in a case, says O'Neill. This limits a court's ability to benefit from that expertise when evaluating child custody cases.
According to Longwell, some circuits use GALs as stand-ins for those specialists. O'Neill also points out that people in less affluent counties cannot afford a divorce process that "now envisions each party being represented by counsel, a mediator being paid, possible psychological and psychiatric analysis, and attorneys to represent the children." These economic imbalances are part of what the committee seeks to address.
Playing many - and conflicting - roles
Economic limitations can lead to other problems. For instance, a child representative or GAL is often asked to wear many hats. Under the law, a GAL serves as a witness in the case, investigating the facts of the case and submitting a report and recommendations to the court. But in some instances, courts also use them as stand-ins for psychologists and psychiatrists, says Longwell.
A child representative serves as an advocate for the child's best interests, functioning as an attorney in the case. The representative also has the investigatory powers of a GAL. However, the Illinois Marriage and Dissolution of Marriage Act prohibits child representatives from testifying in or submitting reports in child custody cases. Nevertheless, some are asked by the courts to do so.
Longwell points to DeBates v. Bates, 342 Ill. App. 3d 207 (2nd Dist. 2003) as an example of conflicts that arise when this happens. In DeBates, a child representative submitted a report to the court, but was not allowed to be cross-examined.
The second district recognized that in situations where child representatives are direct witnesses, they have stepped outside the role of attorney, and can be called as witnesses. The court further found that this shift could be reconciled with Rule of Professional Conduct 3.7, which prohibits attorneys from being both a witness and an advocate, by appointing a second attorney to represent the child.
On review, the Illinois Supreme Court held that the second district was incorrect and that the statute bars the child representative from testifying. In re Marriage of DeBates, 212 Ill. 2d 489, 511 (2004). In some circuits, attorneys are appointed to these types of dual roles, which raises ethical issues.
The committee also wants to examine the varying qualifications that circuits require a GAL or child representative to possess. Longwell says that in some jurisdictions, young or new attorneys are appointed to fill the role of GAL or child representative. Other jurisdictions require 10 years of practice and at least one complete custody trial before an attorney is qualified to be on the appointment lists. Each circuit also has its own training programs for attorneys.
With these challenges in mind, the committee wants to start a dialogue with practitioners and judges across the state. The committee has posed a list of questions to judges and family law practitioners alike, which appear in the section newsletter article cited above. Attorneys and judges who would like to provide additional input should contact O'Neill at firstname.lastname@example.org or Longwell at email@example.com.